You offer as a suggested question, “What makes a good mediation brief?” Yes, I’d like your comments on that.
Dear Curious. Great question. I wish I had thought of it.
And let me say at the outset that while I am, of course, right with this answer, I welcome feedback from others, including my mediator friends out there, who think wrongly…I mean differently than I.
But with that said, I have two answers for you. The first is the standard, generic answer that will work just fine for most mediation briefs. I’ll share that below in this post. But if you are willing to go a little deeper into mediation psychology and toy with the possibilities of a more effective mediation brief, take a look at answer No. 2, which I’ll post separately next.
Answer No. 1: The Normal Mediation Brief:
Mediations are not summary judgments, so don’t take your old summary judgment brief, slap a new cover page and submit it as a “Mediation Brief.” Seriously, we don’t need all that law and argument. While it might do in a pinch, so will a simple phone call with your mediator, and the phone call will invariably be more effective and useful.
Instead, try to think like a mediator and give him (or her) what he (or she) needs to do his (or her) job. Sure mediators are looking to understand the basic facts, law, and procedural posture of the case; but they are much more interested in discovering the BS – the Barriers to Settlement (what did you think I meant?).
Mediators are looking to discover the key one or two factual issues that are really in dispute; the one or two legal issues that the parties disagree on. They want to know who’s calling the shots in each room and what those people are thinking. What are the stakeholders really interested in. They want to know what the parties have already discussed in terms of settlement, and what they each think the problem is. In short, we mediators want to help the parties settle their own case – we don’t need a detailed trial brief to help you do that.
Instead, I think most mediation briefs can be done in fewer words than this verbose answer — seriously three to seven pages should do it, even ones for patent or other complex cases. And if you include the following topics, you will have provided your mediator with just about everything he (or she) needs to get the job done:
1) A short description of the case and the key legal and factual issues. This should not be long or detailed; just enough to introduce the dispute. Remember, we are simple people….
2) Status of the litigation. Where in the process is the case? What is the status of depositions and other discovery? When is trial?
3) A summary of settlement discussions to date, if any. Who said what and what was the response? Include each party’s last settlement position.
4) Roadblock to Settlement: Describe what you believe to be the current roadblock to settlement. This is generally very helpful when the attorney puts some thought into it (not that “the current roadblock to settlement is the opposing attorney’s asinine legal theories and his client’s fantastical expectations” isn’t helpful, but…. A little more introspection would be nice.)
5) Any unusual dynamics: Describe any dynamics that might be impacting the views, beliefs, desires and positions of the parties, including personality conflicts (of parties or counsel) or secret needs or desires of the parties. This is generally the most valuable to your erstwhile mediator…the hardest to discern for the advocate, perhaps, but the most valuable nonetheless.
Again, this can be done in 5 pages. We don’t need detailed briefs; we just need to be apprised of what’s going on.
Plus, if we are doing our jobs well, we will have had pre-mediation conference calls with each side, so we can delve into some of these topics in more detail if they seem particularly pertinent.
Confidential or not? I know this is your next question. Should you share your brief with the opposing party, or submit it to the mediator confidentially? The answer is, in good legal fashion: It depends. If the brief is going to be discussing what a jerk the opposing party or attorney is, or what the client’s secret need is for resolving the case, then a confidential brief sounds pretty good. Items 5 and 6 above in particular are ripe for confidential submission to the mediator. After all, the goal of the brief is to assist the mediator, not inflame the opposing party.
On the other hand, if part of the impasse is the other party’s perceived failure to appreciate the strength of the legal case, then exchanging polite briefs, especially responding to items 1-4 above, might be the answer.
And yes, you can exchange part of the brief, and submit part confidentially to the mediator.
Now, Curious, aren’t you glad you asked?
And is it possible there could be any more to say about mediation briefs? I mean seriously, how complicated can this be?
A little more complicated as you’ll see in the next post with Answer No. 2
Answer No. 2: For the Advanced Mediation Advocates:
In my last response, I gave you the yeoman’s mediation brief – the brief that will generally work for most cases. It’ll get the job done.
But can you do better? This is a question I ask myself all too frequently. With respect to all aspects of the mediation process, from mediator selection, to briefing, to caucuses, to negotiating, to settlement, can you do better?
I think for briefing (actually for all phases of the mediation), the answer is yes.
And with briefing, as with the other steps in the mediation process, you first need to consider your goal. Why even draft a brief? What’s the purpose? Why not just call the mediator on the phone and tell him (or her) why your side is right, the other side is wrong, and how you’ll win at trial? It would be faster, plus you could answer questions. (You should do this, by the way, if the mediator doesn’t initiate a call on his or her own.)
In my view, the goal of the mediation brief is to help the mediator understand the dispute so he (or she) can be as effective as possible in assisting the parties explore settlement. The brief’s focus is not to convince the mediator that your side will win at trial, though that could be part of the message. Nor is it to uncover every legal argument possible, though some of that may be helpful. Instead, the focus should be on helping the mediator understand THE DISPUTE, which is different than the legal claims.
Lawyers tend to focus on the legal claims, which is not surprising considering they are representing their clients in a court of law and they spent all that time in law school learning the law…or at least where the law is stored (in my day, it was stored in books…). Lawyers need to be focused on the legal claims. But more often than not, the clients are focused on the dispute. Something bad happened to them and they are using the legal process to try to make something right. They are focused on the injury and the remedy.
What are the mediators focused on? Resolution. We want to find that settlement that both sides will prefer to trudging further towards trial. Legal issues are useful. So are factual issues. So are true motivations, needs, desires, wishes.
So back to briefs, what will really help the mediator? What can you share in a mediation brief that will help the mediator help you settle your case? Easy: Help the mediator understand the nature and cause of the impasse. Get past the impasse and you can resolve the lawsuit.
Which means you first need to figure out the cause of the impasse yourself.
This sounds simple, but it actually requires a little introspection, reflection, and investigation.
The cause of the impasse might be a misunderstanding of the legal issues (yours or theirs), or a misperception of the facts (again, your misperception or theirs), or it might be something else altogether. Understanding the cause of the impasse is the first step towards resolving the dispute.
Think of it this way. How do you stop a baby from crying? Well, that depends. What’s the cause of the tears? Is he hungry…or stinky? Once you figure out the cause of the tears, the solution is easy. (Unless you’re me, then the solution is the same no matter what: “Here you go, dear.”)
Let’s look at a real life example. In one recent case, a Russian immigrant was suing a former employer for wrongful termination, claiming that he was terminated as a result of his ethnicity. The fact that this plaintiff was a mortgage broker and was laid off with scores of other brokers during the depths of the banking crisis, and hadn’t closed a loan in the 9 months he had been with this company did not seem to register with the plaintiff. The fact that the plaintiff had brought his son into the company as an assistant, and the plaintiff was fired in front of his son DID register with the plaintiff, as did the fact that this immigrant had risen through the ranks to become a successful businessman and an important community figure (at least in his own mind).
Why does this case exist, and why hasn’t it settled yet? There could be any number of factors driving this dispute. Figuring out the actual drivers is your first step in approaching mediation, and will guide your mediator selection and brief drafting.
For instance, the driver of this dispute (the cause of the impasse) could be:
– Financial (“Now that I’m unemployed, I have no money and no health insurance.” Or “The company is broke, and couldn’t pay what the plaintiff is asking even if it wanted to”).
– Emotional (“I hate that guy and am not paying him a penny”).
– Attorney Chest Pumping (“I’m better than my opposing counsel…and I’m going to prove it”).
– Lack of attention by stakeholders (“the adjuster with authority is on vacation…again”).
– Business realities (“my cash flow is seasonal–and this ain’t the season”).
– Informational (“they claim they have a witness to the alleged discrimination, but we don’t know who it is”).
– Legal (“their theory of damages is, respectfully, hogwash. The plaintiff got a new job at a higher salary the day after his position was terminated”).
– You or your firm (“I need trial experience. “I’ve been too busy”).
– Your client (“I deserve $1 billion for their blatant discrimination”).
– The opposing attorney or client (“He needs to bill this case a little longer…. And besides, he’s not an employment lawyer so doesn’t get what’s going on”).
In other words, spending time on a mediation brief that addresses all of the legal reasons why you win will probably not have much impact on a dispute that is driven by ego, culture, or the defendant’s inability to pay a judgment. Convincing the mediator that you have a summary judgment case, and asking that the mediator “pound this into the plaintiff’s thick skull,” will not really help a dispute driven by emotion and a sense of betrayal.
In a personal injury case, a brief focused on the negligence standard will not really help if the dispute is over whether the injury is a pre-existing one.
So what helps the mediator? What should you include in your brief? Sure give a brief summary of the law and facts. Sure tell why you’ll win at trial, or at summary judgment. Sure tell about the killer witness you have. But then focus on the cause of the impasse. Explain what is REALLY going on…what is lurking below the surface of the legal case. Explain the dynamics driving the conflict. Let the mediator know what he or she is likely to be faced with once the mediation gets rolling.
In the example above, a defense brief containing a short legal analysis of wrongful termination in California, combined with a few facts confirming cause for termination and lack of damages is helpful. But that doesn’t explain why this case exists…or how a mediator might approach it for resolution purposes. Letting the mediator know of the cultural issues at play, on the other hand, as well as the family issues involved, allows the mediator to be more sensitive at the outset and to explore ways to address those issues in the context of an overall settlement. The plaintiff could do the same in his brief.
And then suggest some solutions. If you have some ideas for addressing the true drivers of the dispute, don’t be shy. Share them with your mediator. Any ideas are useful in getting everyone thinking of ways to address the underlying problems.
So help your mediator help you. Give him what he needs to do his job. Help her understand what’s driving the dispute. Share with him your insights. Propose some solutions. And then be prepared to work towards that common goal—a good night’s sleep.